The Americans with Disabilities Act is a civil rights law. Most often associated with street and building access, it also governs goods, services, and information made available to the public, including websites. The ADA applies to everyone who places information out for public consumption, including private industry, or nonprofits – any organization that is putting information on the web. Some examples that may seem less obvious is that churches and spiritual organization website are included, as are neighborhood association or hobby club websites.
Once argued by some to apply only to businesses with a “brick and mortar” presence, a string of legal rulings reinforces the fact that even businesses with only an online presence must also comply with the ADA.
Escalating lawsuits have put pressure on the need for clarification of the digital aspects of the ADA, prompting the drafting of web rules, which were prepared for release in 2017. Then, a high degree of uncertainty was introduced when the web rules were unceremoniously withdrawn that same year by a White House administration and the Department of Justice (DOJ).
But where does the ADA stand now? And what can we expect to happen with the web rules in the future?
When the ADA web rules were withdrawn in 2017, the impact was dramatic. ADA lawsuits skyrocketed 181% in 2018 over 2017. The pressure this put on the US legal system, and the business community, was enormous.
In May of 2018, the sharp rise in ADA website cases prompted Congress to issue a bipartisan request that the DOJ release the website accessibility guidance, or some form of website accessibility legal clarification, to alleviate the pressure on the US legal system. The request was declined.
Despite the tug-of-war of proposed and withdrawn changes to the ADA, it is still a law that impacts website accessibility. Part of this is a culture shift: a growing number of people and organizations in the US now see accessibility as a civil right, and enforcement regarding website accessibility is still happening. Despite the lack of clarity surrounding what website accessibility under the ADA means, courts continue to uphold the ADA due to legal precedence, simple practicality and through the enforcement of other laws, and through government departments, tied to civil rights.
One example is the application of the US Department of Civil Rights complaint system by parents with children living with disabilities, to public school website inaccessibility. Parents who were frustrated by inaccessible public-school websites and could no longer look to receiving support from the withdrawn ADA web rules, began filing complaints about the issues they, or their children, were having, accessing the same information as parents, and children, who did not live with disabilities.
The Federal Department of Civil Rights has a legal obligation to review each complaint they receive, so each was investigated. As the number of complaints grew, the OCR adopted the same tools that ADA lawsuit rulings were applying to determining website accessibility and inaccessibility: manual accessibility audits. WeCo was asked to assist with many of those manual audits, and to help public school systems meet the requirements of digital accessibility under the auspices of the OCR.
Throughout this roller coaster ride, the rights of real people living with disabilities, now in upwards of 26% of Americans, have hung in the balance. And a growing number of individuals, businesses and government bodies express their support that access to digital information is a right, by adhering to the ADA—however unclear it may be without website guidance.
The Web Content Accessibility Guidelines (WCAG) version 2.0 AA was adopted by the US Access Board, and applied to the refresh of The Rehabilitation Act of 1973/Section 508, a federal accessibility law, in early 2017. Our sources tell us that the US Access Board will not adopt versions 2.1 or 2.2 of the WCAG until it’s ready to update the application of WCAG in Section 508. It is projected that the ADA will eventually introduce web rules again which will also include WCAG 2.0 AA or a later version. This may occur with, or on the tails of, the adoption of the newer WCAG versions by the US Access Board, and their application to Section 508.
Regardless of the timeline, we know this: the ADA as a requirement for website accessibility, is here to stay. And a clearer explanation of what that means is on the way with the long-awaited web rules.
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